A precedent for Arab-Americans?
As fear of terrorism grows, and ugly stereotypes of Arabs come out of the closet (not least on Saturday Night Live), the country should pause to recollect this history, which took place not fifty years ago. Driven by war hysteria (and the sainted Walter Lippmann), the government cast suspicion and imposed punishment on an entire racial group. Moreover, in 1944 the Supreme Court upheld the action as a reasonable exercise of war powers in Korematsu v. United States and, although Congress recently mailed reparations checks to survivors of the detention camps, the Supreme Court has never had occasion to overrule its decision.
The bombing of Pearl Harbor on December 7, 1941, unleashed a sequence of events that culminated in the mass round-up. On February 19, 1942, President Roosevelt issued an Executive Order giving military commanders power over certain parts of the country, and the next day he designated Lieut. Gen. John DeWitt as Military Commander of the Western Defense Command, which took in all of the Western states. Within three months, General DeWitt had issued a series of military proclamations that accomplished the relocation and incarceration of the Japanese-American population along the Pacific Coast. Tens of thousands of innocent Americans found themselves living in barracks behind barbed wire fences.
It is clear that General DeWitt's actions were based on race, rather than military necessity, as he claimed. A Jap's a Jap"' he said. "It makes no difference whether he's an American or not:' It also made no difference to DeWitt that not a single person of Japanese descent was accused, much less convicted, of espionage or sabotage after the attack on Pearl Harbor. As he stated in his final report, "The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken:' The general harbored a visceral contempt for people of Japanese extraction, whom he described in his final report as "subversive" members of "an enemy race" whose "racial strains are undiluted ... [a] large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion:'
The equally strong ties of Italian-Americans and GermanAmericans to their mother countries for some reason did not warrant the internment of those groups, making the general's actions, at the very least, "under-inclusive," in modern constitutional parlance.
In elevating race over citizenship and maligning an entire people as treasonous by nature, General DeWitt was expressing sentiments held by many citizens. Justice Frank Murphy noted in his dissent in the Korematsu case that "special interest groups were extremely active in applying pressure for mass evacuation." For example, Austin Anson, the managing secretary of the Salinas Vegetable Grower-Shipper Association, said, "We're charged with wanting to get rid of the Japs for selfish reasons.... We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and stayed to take over... If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either."
Despite the racist motives behind the Japanese internment, the Supreme Court sustained the criminal conviction of Toyo-saburo Korematsu, who violated General DeWitt's detention and resettlement orders. The Court held that the internment was within the government's war powers and not in violation of Korematsu's constitutional rights.
The Arabs are the Japanese of 1991. Never mind that ArabAmericans are American citizens and that they are more likely to be the victims than the perpetrators of racial violence. Never mind that most of their leaders have denounced Saddam Hussein and support the demand that Iraqi forces withdraw from Kuwait. There is great uneasiness in the Arab-American community and the whiff of a witch hunt in the F.B.I.'s curious "interviews" with Arab-Americans.
Would the Supreme Court today find a violation of the equal protection clause if the government rounded up ArabAmericans or Palestinian-Americans or Iraqi-Americans as potential traitors and saboteurs? It is hard to know. Surely the Court should recognize such policy as impermissible racial discrimination and a violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. Surely the Court should resist the primitive doctrines of guilt by association, group culpability, inherent racial conspiracy and presumed guilt that would infuse such an action. But wartime is wartime, and the Rehnquist Court accords much deference to the military's power.
And then there is the strange fact that Korematsu is no dead letter. The decision is generally condemned, but it has not been overruled. It is a dismal precedent. As Justice Robert Jackson warned in his powerful dissent from the majority's opinion in that case, "Once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."
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|Title Annotation:||internment of Japanese-Americans during World War II|
|Author:||Raskin, Jamin B.|
|Date:||Feb 4, 1991|
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